Tenenbaum Dinged $22,500 Per Song; $675,000 Total

from the and-onto-the-appeal dept

After admitting flat out yesterday that he downloaded and distributed songs using file sharing software, and that he lied about it, there wasn't a question of whether or not Joel Tenenbaum would be found guilty. In fact, the judge even said that the question wasn't even at issue. The only thing the jury had to work out was how much the damages would be, and they didn't take long at all, awarding $22,500 per song, or a total of $675,000. While a lot less than what the Jammie Thomas jury awarded, it's still a hefty chunk of change.

I've already expressed my distaste for how this trial was handled by Nesson and "Team Tenenbaum," but honestly, if he was going to just admit that he did it, it's unbelievable that he didn't just settle earlier when he had the chance. The only reason to go through with this is if the entire purpose is to create a later constitutional challenge on the statutory rates -- which many assume was Nesson's plan all along. However, if that's the case, is this really a good test case for that? Gleefully ignoring the law isn't the sort of thing that I think many judges/justices will find endearing. If this case does move up the appeals chain, one would hope that a better team of folks will handle Tenenbaum's appeal, and focus on the real legal issues. Of course, even before the appeal, it appears that Judge Gertner is planning to review whether or not the amount appears to be unconstitutional. It seems that particular ruling will be a lot more important than what the jury had to say.

If I was Tenenbaum

AFL RIAA factory-piracy

The RIAA (and indeed, the nation as a whole) should be investigating their own factory workforces as a priority law-court action -- however, the possibility that the factories can be lost or even destroyed precludes such action. Without factory misconduct, file-sharers feel no necessity to take factory-distributed music and copy it for concert comparison purposes.

The only way to get the law changed is to show how out of sync the law is. This is why we sometimes get cases where child porn charges are brought up to a 10 year old who took pictures of himself and sent them to people.

This case is much the same way, we are trying to show how out of sync the law is with the way the world works. Somehow im sure its an age thing as well, old people in suits telling young people what they can and cant do. Young people aways rebel aginst this kind of authority and it never ends well.

It isn't a legal issue.

I'm happy with the outcome of this trial. The facts are very, very simple. This guy stole property that he didn't pay for any rights to and then he distributed it to others, significantly increasing the impact of his intentional crime.

I think the current model for music and video is completely broken and needs to be changed. The music and movie industries are completely out of touch with technology. I believe that we need to aggressively move in the direction that Trent Reznor is pointing to.

However, just because this is the way I feel - and Joel feels - doesn't give either of us the right to decide this is the way to go on behalf of the property owners. I think paper currency is also an obsolete model - does this give me the right to use available technology to copy it and distribute it? Of course not.

To use another example, as Mike said in previous posts, just because we think Lori Drew may have behaved in a despicable way doesn't mean that we should bend the laws to punish her. The same applies here. Just because we think music should be free doesn't give us the right to ignore the laws on stealing.

This is a business issue, not a legal issue. Stealing music should not be a matter for the courts. The right approach to solving this problem is to make the RIAA and MPAA wake up. Go straight to the artists and bypass the Luddites. If they can't get with the game, send them to the bench. The customer base is speaking with a very loud voice. Now it's up to the business owners to listen and change their game. There is so much more money to be made.

Re: AFL RIAA factory-piracy

Re: It isn't a legal issue.

Infringed, dick hole. Not stole. Quit using that word. No where in this trial was he found guilty of THEFT. He was found guilty of infringing on copyright which is ENTIRELY different. So different, in fact, that they have a different set of laws. Learn the fucking difference.

Re: Re: It isn't a legal issue.

@12 A Coward - Copyright infringement is just another form of stealing. Stealing is a generic term, not a legal term. Instead of making stupid comments, why not debate the logic of my point? Answer - because you can't.

Re:

Tenenbaum was accused of downloading 30 songs with a retail value of 99 cents each., and a wholesale value profit value to the music label of 35 cents each. The RIAA never proved distribution. 30 x .35 = $10.50. The 675,000 verdict is beyond unreasonable, it is unconscionable.

Re:

Re: Re: Re: It isn't a legal issue.

Ok shithead, here's the deal. With a very few exceptions, you will be charged with theft (annexation, appropriation, break-in, burglary, caper, cheating, crime, defrauding, deprivation, ad nauseum) by the state. You are charged with either Theft or Larceny depending on the state and how the exact laws read. Copyright infringement, however, is a civil matter and can only occur when a rights holder files a lawsuit against someone. I hope whatever law school you went to informed you of the difference. Did they? Answer - you never fucking went you dickless sack of shit. You don't know enough about the law to fill a god-damned bottle cap. I have more knowledge of intellectual property law in my BALLSACK than you have in your whole fucking body. You want to call me on it? You want to answer shit for me? Good. Do it. Show me what you have moron.

Stealing does have a legal definition in some vicinities. In others it's called larceny, which is a synonym for stealing. The shortened legal definition is as follows:

STEAL - the wrongful or willful taking of money or property belonging to someone else with intent to deprive the owner of its use or benefit either temporarily or permanently. No particular type of movement or carrying away is required.

So come on back you sorry piece of shit. Show me where I'm wrong. Even better, come on down to my house and we'll talk turkey. Maybe you could hire me to teach you everything I know about law. Next time you need to do a little fucking research before your sorry ass starts spouting about generic terms versus legal terms.

Re: Re: Re: Re: It isn't a legal issue.

"TEAL - the wrongful or willful taking of money or property belonging to someone else with intent to deprive the owner of its use or benefit either temporarily or permanently. No particular type of movement or carrying away is required."

The real key is "deprive the owner of its use or benefit either temporarily or permanently" - one of the benefits of creating a song is controlling how it is sold, how it is distributed, and how long it is on the market. File trading deprives the original creator of the song of these ownership rights forever, putting the music out there in a place where the owner can no longer control the benefits that he or she should have as the copyright holder.

Re: Re: Re: Re: Re: It isn't a legal issue.

Re: Re: Re: Re: Re: It isn't a legal issue.

That's not what the word TEAL means. TEAL is a blue-green color.

"The real key is "deprive the owner of its use or benefit either temporarily or permanently" - one of the benefits of creating a song is controlling how it is sold, how it is distributed, and how long it is on the market. File trading deprives the original creator of the song of these ownership rights forever, putting the music out there in a place where the owner can no longer control the benefits that he or she should have as the copyright holder."

Partially true, but distorted. Taking a CD from a store is, legally speaking, stealing. Distributing files that you have no distribution rights to is, legally speaking, copyright infringement. Mark Lemley, COPYRIGHT EXPERT AT STANFORD LAW (I assume you don't have a distinction like that) said "If I take your physical property, I have it and you no longer do. If I copy your song, I have it, but so do you." While I agree that the data itself is valuable and that you shouldn't infringe on copyright (my brother is a professional musician...he sings for his supper so I have very strong opinions on copyright), that doesn't change the fact that LEGALLY you will not go to jail for infringement. You will be taken to court by a company or individual, not by the state (I am assuming you're talking about the US since that's where this case is).

Let's discuss what he was accused of. Was he accused of theft? Grand theft? Grand larceny? Murder? No, because all of these things take away something physical. LEGALLY (yes, I'm referring to the law again even though you don't agree with how the law is worded) he was accused of and later found guilty of willful copyright infringement. The plaintiff was awarded damages. In a civil suit no 'crime' has been committed, but someone has instead been wronged. The person found guilty of the wrongdoing is then ordered to pay restitution to the damaged party, not serve time in jail.

Do you see the difference between the two? Unless you're in the business of interpreting the law (are you a judge? If so, where?) you do not get to dictate what certain words mean legally no matter how strongly you feel about it.

In summary: I am not for copyright infringement but let's call things what they are. That's why I called you all those names earlier. That's what you are. That's why when I discuss copyright infringement I don't try to muddy the issue and call it something it's not. Sure, stealing is easier to type for people who can't spell infringement. Sure, stealing is something that everyone has some feelings about so it is an emotionally swaying argument. Call it what it is, though, not what you want it to be. You want to change the law? Go buy yourself a congress-critter.

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Re: It isn't a legal issue.

I have to agree that stealing music is inappropriate, but the money being awarded are just plain destructive. The politician have handed copyright owners a weapon of mass destruction. I'd like to point out that a bankruptcy is not a walk in the park.

I would prefer to see violators such as this student receive a small punitive fine, have the computer hardware confiscated, and a good chunk of community service. This way he would face some consequences, and the RIAA would get some justice.

I personally believe that business and copyright holders have gotten the best of our Congress. I have no problem with rewarding creativity and ingenuity, but when copyright crimes are prosecuted this harshly, something is wrong.

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I have thought of it as "theft of services" or "misappropriation of services".

This represents a hole in the legal system, because things are fairly clear: There are millions of people all over the world that have music they didn't pay for. If I ask my mother "what would you call it if I have a bunch of stuff that cost money but I didn't pay for it?" her first answer would be "a gift". I say "nobody gave it to me, I went to get it myself". She thinks for a second, and says "you stole it from someone?". That pretty much summed up where I end up with this, we can play semantics and word games until we are blue in the face, but in the end, people who "infringe" end up with a whole bunch of stuff they shouldn't have.

Tenenbaum is worse, because he was also actively sharing the music, it seems. That adds greatly to the liabilty, because just like Jammie Thomas, the question is how many copies are made as a result down the line? You share it with a couple of people, they share it with a couple of people, and so on. It's easy to show where a single infringement can turn to thousands of infringements in short order.

Oh yeah, no matter what the legal sense of the word is, you and I both know that morally, they stole it. It's just legal semantics at this point.

no really...

"Gleefully ignoring the law isn't the sort of thing that I think many judges/justices will find endearing. If this case does move up the appeals chain, one would hope that a better team of folks will handle Tenenbaum's appeal, and focus on the real legal issues."

I can't do it...I see no REAL legal issues..I see a bunch of elitist wind breaking! this is it...copyright needs to be REDUCED to NOTHING but IF someone IS proved of SELLING it and/or taking their name and putting it on said copyrighted "thing". Really.. that's what its all about and should be all about. *sigh*

Re: Re: If I was Tenenbaum

Re: It isn't a legal issue.

I am sure you have heard it a thousand times before. I am sure telling you now will not change anything you write in the future. Nothing was stolen. It was a copyright violation. I know the little trailer at the beginning of your DVD would like you to believe it is stealing, just like stealing a car, but it isn't.

how out of sync law is with reality?

Paul Brinker - The problem with your supposition that Tenenbaum's case is akin, with respect to copyright infringement, to a "sexting" case with respect to child pornography is that there are much better cases to show the disparity between law and reality than Tenenbaum's. That's Mike's point -- this was a stupid case for Nesson to make into a show trial. To test the law, you take a case with the most innocent, remorseful, and sympathetic client. That's why Jammie Thomas's case is a much better one for challenging the constitutionality of the statutory damages -- her damages are much, much higher than Tenenbaum's.

Tenenbaum had no defense other than this one: the whole system is stupid. That's not a good defense in any legal case, even where the system is stupid. To establish the system is stupid, you use the case where the stupidity is plain to EVERYONE.

I'm no legal expert, but aren't the punitive damages about making sure the defendant is taught a lesson to not break the law again and not to teach others a lesson? Sure he won't infringe again but I'm sure $10,000 would have been more then enough. Effectively bankrupting him won't help deter others. Also he could just go bankrupt and I'd love to see how they would see a penny of that money now.

Out of Sync

My argument for being out of sync is that the spirit of the law was to charge people who were pressing and selling Cd's and other hard media then SELLING THEM. This case, the guy fully admitted to it and was then charged a bankrupting sum thus is as wrong as tossing him in jail for life. Anyone who's had a crushing debt will tell you there is a point where you just don't care about working or getting ahead because you cant.

His punishment for what he has done is basically a life at the poverty line as his wages are garnished and he can never make to much money with out the system taking it away.

My point still stands that to get rid of this law we just have to charge as many people as we can with it till a grandmother who does not even own a computer gets a judgment against her and people start demanding the law gets fixed OR we get some Jury Nullification cases.

Re: Out of Sync

What is the alternative Paul? make all music free, don't pay musicians, song writers, producers, studios, and all those people squat and hope like heck they keep stupidly making high quality, high end music for free?

Wake up and smell the coffee, that ain't happening.

People who steal don't get to dictate the business model of other people. The mob doesn't rule.

Re: Re: Out of Sync

If by "the mob" you mean "consumers" then yes, they do indirectly dictate business models. That is exactly how it works. Everyday more and more consumers are making the decision that digital copies are not worth buying. Note: People are still buying tickets to concerts in record numbers. The only part of the music industry that is taking a hit is record sales. Turns out people don't want plastic discs anymore. In other news, 8-track sales are down, too.

Also, do you mean to tell me that no musicians will every make any more music ever if we don't have copyrights? What about before copyrights? You DO know that copyrights haven't been around forever, right?

I can't speak for anyone else, but I'm on the side of the table where musicians have to actually work for their pay, instead of doing it ONCE and getting paid for each copy of it. You want to make music as your job, go out and do it everyday. I do my job everyday, and no one thinks I shouldn't. In this day and age, paying for a digital *copy* of anything is foolish. It costs next to nothing to make that copy. So little in fact that people are willing to do it themselves instead of going out to find someone to do it for them.

Re: Re: Re: Re: Re: Re: Re: It isn't a legal issue.

I was going to ignore your troll, but something caught my eye:

I say "nobody gave it to me, I went to get it myself".

No, actually, someone offers it up on whatever method you use (Kazaa, bittorrent, usenet, etc) in much the same fashion as a GIFT. They are giving it away for free. Then someone else accepts that gift, and may in return offer it up for others.

Far up the chain, chances are someone BOUGHT that CD and ripped it to their computer, and then gave it away.

So, to sum it up: Someone buys a CD and rips it, and then gives away a copy. Someone else gives away a copy of a copy. Etc, etc.

Wow, interesting thread. Some people are full of pent-up anger, that's for sure.

I made the comment that the music industry's business model is obsolete, and I think most people agree.

I also made the point that the laws are fine the way they are because the 'offense' is clear (whatever you call the 'offense'). However, I do agree that the punishments being doled out are inappropriate. Not because the amounts of damage to the artists are right or wrong, but because the convicted have no chance of paying the amounts awarded. I like the suggestion of a big chunk of community service and perhaps a few years of probation during which the offender may not obtain or possess any digital entertainment media for personal use. Make them feel the consequences of their crime without

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Think of torrents as a digital version of making a copy of a CD. WOudl you feel any different if the original person bought the CD, made 1000 copies of it, and gave them away in front of a music store in the local shopping center?

It isn't really any different. If you can't find the stealing going on there, then your mamma didn't raise you right.

Copyright infringment cant put you in jail over downloading songs, it can only get you a judgment aginst you. The gole of the civil system is to make both partys "whole".

Face it, we need to rewrite the law for dealing with digital goods, I have no issue with the law being able to give huge awords in some cases but punnishing someone in school for life is not good for the peace of the state.

I cant wait till someone goes down the white pages and sends pree settlement letters to an entire city. Heck that might be a great way to make some money right now.

Re:

The problem lies in the harm done, not the ability for the defendant to pay. If Tenenhaum's infringing lead to thousands of copies (or even the potential of), then there is harm that needs to be made good. Making him pat $20 and slapping him on the fingers isn't going to stop him from doing it again, nor would it encourage anyone else to stop, nor would it put the copyright holder back in the position they should be in.

"I cant wait till someone goes down the white pages and sends pree settlement letters to an entire city. Heck that might be a great way to make some money right now."

Good luck - false copyright claims such as this would be a fraud, and that could put your ass in jail.

Additional info to Paul Brinker

Paul Brinker quote:
"His punishment for what he has done is basically a life at the poverty line as his wages are garnished and he can never make to much money with out the system taking it away."

Paul,
A little additional information that I can pass along as an employer who has many times gotten paycheck court orders for things like alimony, debt judgments, and other judgments.

Every judgment order has attached to it the clear laws that instruct the employer how stack multiple judgments and the percent total of the paycheck that can be attached. I don't have one in front of me because I am at home and not at work, but the the total of all judgments amounts (and I think some taxes are included) can't exceed a ceiling of around 50% of the take home pay. They are very difficult to administer with employees who have variable hours and have to almost be hand checked to meet all the conditions of these orders.

I have never in 25 years seen any amount of combined orders be allowed to exceed 50%.

If you think about it, those protection laws make sense, because if the burden gets too high with combined judgments than the person goes underground and the creditor and child support disappear.

I am not disagreeing with the substance of your post just that there is a additional laws that apply to preserve paychecks.

Re: Re: Re: Re: Re: It isn't a legal issue.

I hate to legitimize your point by replying to it or delve into name calling, but in this case it must be done: you are a fucking moron.

Once again copyright infringement != stealing, as you haven't "stolen" (deprived someone of something physical) anything.

Also, reducto ad absurdium is never a good way to frame your argument. By robbing a bank, you steal (deprive the bank of) money. When you download music, you make an identical copy of the song(s). The artist has been deprived of nothing. You might claim that the download deprives the artist of money, but why is it that the music industry is thriving even though infringement is rampant?

Re: Re: Re: Re: Re: Re: It isn't a legal issue.

"why is it that the music industry is thriving even though infringement is rampant?"

Actually, this is one of Mike's little "misdirections", let me explain:

1997, the total music sales (CDs, records, tapes, whatever was around) worldwide was about 10 billion dollars. in 2007, that number was 11 billion. Now, if you are smart, you will see that sales are up 10% (dollar wise). But considering inflation and all, that original adjusted to 2007 number should be somewhere between 14 and 16 billion - so in fact, sales of recordings are down significantly. This is very easy to verify, just consider the number of music stores that disappeared in that 10 year period. The numbers come from the RIAA I think, originally found here on techdirt about a year ago.

Recently, Mike ran an article about the music business making more money in the UK. But again, the story is a little misleading because it lumps together both record sales, live performance, and all other revenue sources related to music in any shape or form. When you consider that concert ticket prices have more than doubled (and often tripled) in the last 10 years, you would think that the total take for all of music would be more than double. The reality, it is barely up total, which again does not bode well in adjusted revenue numbers.

Widespread "stealing services" (aka, infinging) has lead to a significant drop in the retail music business. Again, bear witness to the number of record stores that have closed in the last 10 years. Itunes isn't making up for it in anywhere near a big way.

More importantly, consider the increase in the consumption of music - MP3 players are so widespread now, that pretty much every home has at least one if not more, plus computers to play music, etc. With all that extra consumption of music, radio stations are seeing declining listenerships, online radio isn't doing all that well, and record sales aren't happening on scale with the explosion of music consumption. Thus, you can also deduce that if people actually paid for what they were using, the music industry would be booming. That the numbers are less than booming is another key indicator of what is lost.

If you think the music industry is thriving, you need to go look closer - most of it is suffering greatly under the weight of lost income.

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Correlation != causation. Reduction in the inflation adjusted gross music industry profits during that 10 year period still says absolutely nothing about whether copyright infringement has caused financial harm to the industry whatsoever.

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Nonsense; if that were the case then the damages suffered would have to be substantiated in order for the judgement to make any sense. That is not the case. These judgements are meant to be absurdly high as a potential motivation for others not to infringe copyrighted materials. The amount of damage done to the industry must consider whether anyone who downloaded files from this student would have, or even could have, purchased the files they downloaded. That is not being addressed here.

Re: Re: Re: Re: Re: Re: Re: It isn't a legal issue.

To put this another way: people consuming more music, whether paid for or not, does not mean the music industry should be making more money! Lots of people download music they could not have paid for and/or would not have paid for even if they had the money to do so. That does not equate to lost profits for the industry. Money they could not have taken as gross profit is not lost when it is not received. This is a very basic argument that really cannot be refuted.

"When you consider that concert ticket prices have more than doubled (and often tripled) in the last 10 years, you would think that the total take for all of music would be more than double. "

Could that possibly be due to a larger demand for the tix due to the new internet infringment inspired popularity of the bands? Yes. (there is in fact little other to turn to to be able to explain the situation).

"Thus, you can also deduce that if people actually paid for what they were using, the music industry would be booming."

Yeah you can deduce that, and you can deduce that people would simply "use" less music, or listen to the radio more. And overall the industry wouldn't be booming.

Mike's point is that popularity of music went up, and it did. Increased availability of a thing will always increase its popularity if it is something people like.

Mike's other point is that this increase in popularity offsets the supposed "loses". And it is indeed reasonable to conclude such.

I don't see how you morons can continue to miss this. If 10000 people know about your music, and love it and buy it (as well as misc sht you sell), in year 1, and in year 10 1000000 people know about your music, and love it and buy a small portion of it then you'll just about break even. However, when one considers all that misc sht you sell on the side, you came out very much in the black at year 10. The fact that IF you'd have had 1000000 people all buying all of your songs/records in year 10 you'd make bazillions is moot because you'd never have had 1000000 people know about your music in the first instance if they hadn't all been spreading your work around to each other. In other words, you can't have the bazillions in the filesharing scenario, or in the no filesharing scenario. Never going to happen.

The next question you have to ask yourself is: Do I want this young man I just sued coming to kill my children at their playground?

I imagine that most RIAA staff, when they get around to considering the last question will have a change of heart.

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A recent survey of file sharers indicates that file sharing is down across the board. Even teen file sharers are down by 8%, TO 34%. While the numbers of teen sharers remains high, the fact that they have decreased at all indicates something.

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Re: Re: It isn't a legal issue.

Man that DVD trailer shits me - there is a really really big difference between _stealing_ a car, a tv, or a dvd, and downloading movies, and that is, yes, that if I download a movie from your computer you won't be missing it.

Mercedes-Benz used Janis Joplin's song of the same name in an advertisement in recent years.
But is is still illegal to copy one of Janis' albums and give a copy to your friend.
Which action do you think is the greater violation of the desires and rights of that artist?